Brexit & REACH

Brexit & REACH

On 23 June 2016, the majority of the United Kingdom (UK) voted to leave the EU and on 29 March 2017, Prime Minister Theresa May invoked Article 50 of the Treaty on European Union, the formal mechanism for leaving the EU. If no agreement between the EU Member States and the UK concerning REACH is reached and no extension is agreed, the UK is due to leave the EU on 29 March 2019, at 11:00 PM (UTC). Therefore, the EU REACH regulation will cease to apply in the UK on that date.

With all this being said, what are the implications of “no deal” for UK REACH registrants and how can they preserve their market access to the EU/EEA after 29 March 2019 but also after a potential “deal” is reached and a transitional period ends ( currently foreseen as the 31st of December 2020)?

Under this scenario, where the UK leaves the EU without a deal, UK-based companies that have registered their substances under REACH would need to take actions before an abrupt exit from the EU, if they want to preserve their access to EU and EEA market areas.

This would mean that before the UK becomes a “third country” outside the EU, and as a risk mitigation measure, UK registrants, specifically UK manufacturing companies and UK Only Representatives need to transfer their registrations to an EU/EEA based legal entity such as a subsidiary or to an Only Representative.

In addition, UK based importers may consider transferring their registration(s) to an EU-27/EEA-based legal entity, as long as it is the result of a legal entity change. The transferring of the registration(s) must take place ahead of the UK withdrawal from the EU and must be notified to ECHA without delay. Unfortunately, in the case of UK importer registrations, transferring of their registrations to an EU Only Representative is currently not possible.

Furthermore, UK downstream users that are currently importing chemicals from an EU/EEA country will have registration obligations after the 29th of March 2019 if they want to continue doing business in EU/EEA market areas.

CEFIC ( European Chemical Chemistry Council) advises that already now, companies should review their SIEF/Consortia agreements obligations in order to prepare for the future transfer of dossier rights to an EU subsidiary or to an Only Representative so they can take over the EU REACH requirement.

Our Support for UK based business

28 November 2018: Brexit negotiations to be finalised. EU Council to agree on the UK’s EU withdrawal agreegment and political declaration on future relationship with the EU.

By March 2019: EU and British Parliaments to ratify a potential Withdrawal Agreement.

29 March, 2019: UK leaves the EU at 11:00 PM ( GMT)

30 March, 2019: Potential transition period starts with the UK remaining in EU REACH during that transitional period

31 December, 2020: Transition period ends.

Manufacturers and ORs

Before the UK becomes a “third country” outside the EU, and as a risk mitigation measure, UK registrants would need to transfer their registrations to an EU/EEA based legal entity such as their own subsidiary or to an Only Representative. The transferring of registrations from an OR to a newly appointed OR can be done any time before the UK exits the EU and the Non-EU manufacturer should then appoint the new OR for the substance(s).

In contrast, as long as the UK is a Member of the EU, UK based manufacturing companies cannot transfer their registrations to an OR within the EU 27. Hence, and following ECHA’s advise, UK manufacturing companies may set-up a contractual agreement with a suspensive conditional clause stating that the appointment takes effect on the date when the UK withdrawal from the EU will take place.

REACHLaw is happy to provide you with such agreement and will take care of all the technical REACH work and representation to preserve companies EU/EEA market access.

UK based Importers

According to ECHA, UK based importers may consider transferring their registration(s) to an EU-27/EEA-based legal entity, as long as it is the result of a legal entity change. The transferring of the registration(s) must take place ahead of the UK withdrawal from the EU and must be notified to ECHA without delay.

Unfortunately, in the case of UK importer registrations, transferring of their registrations to an EU Only Representative is currently not possible. However, if the importer undertakes to formulate mixtures with the registered substance(s), they can appoint an Only Representative in the EU.

Likewise, the non-EU manufacturer (s) relying on UK’s importer registration(s) would then need to consider appointing an EU-based Only Representative for the purpose of registration, it the UK importer doesn’t transfer their registrations to an EU legal entity.

CEFIC advises that already now, companies should review their SIEF/Consortia agreements obligations in order to prepare for the future transfer of dossier rights to an EU subsidiary or to an Only Representative so they can take over the EU REACH requirements.

REACHLaw is happy to help you as your Only Representative and will take care of all the REACH registration requirements to preserve your business in the EU/EEA.

EU based companies relying on REACH registrations

As soon as the UK leaves the REACH regime, EU 27/EEA companies relying on REACH registrations from the UK suppliers will become importers under EU REACH and therefore, may be subject to registration requirements, unless covered by EU-based ORs appointed from UK companies.

REACHLaw is happy to help you to assess your specific case and will provide you with all necessary REACH services to preserve your business in the EU/EEA market areas.

CEFIC advises companies to prepare as follows:

Check the list of your actual suppliers

Identify substances/mixtures that are sourced from UK suppliers

Check whether UK suppliers plan to appoint an EU based OR post-Brexit to ensure continued supply in the EU or if they have an EU legal entity that has valid registration and can become an importer

Evaluate whether your company would like to make own registrations

EU based companies relying on REACH registrations

Before the UK becomes a “third country” outside the EU, and as a risk mitigation measure, UK registrants would need to transfer their registrations to an EU/EEA based legal entity such as their own subsidiary or to an Only Representative. The transferring of registrations from an OR to a newly appointed OR can be done any time before the UK exists the EU and the non-EU manufacturer should then appoint the new OR for the substance(s).

In contrast, as long as the UK is a Member of the EU, UK based manufacturing companies cannot transfer their registrations to an OR within the EU 27. Hence and following ECHA’s recommendation, UK manufacturing companies may set-up a contractual agreement with a suspensive conditional clause stating that the appointment takes effect on the date when the UK withdrawal from the EU will take place.

REACHLaw is happy to provide you with such agreement and will take care of all the technical REACH work and Only representation to preserve your EU/EEA market access.

Articles and updates on Brexit & Reach

Sharing our opinions on the uncertainties that Brexit brings to the chemical industry operating in the EU.